Memorandum Points and Authorities

Cal. Super. - 6th Dist.November 20, 2020

LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP JOSEPH R. LORDAN, SB# 265610 E-Mail: Joseph.Lordan@lewisbrisbois.com ALLISON L. CARDENAS, SB# 272924 E-Mail: Allison.Cardenas@lewisbrisbois.com JOSEPH L.J. APPEL, SB# 276946 E-Mail: Joseph.Appel@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendant BBVA USA Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/7/2021 3:52 PM Reviewed By: L Del Mundo Case #20CV373869 Envelope: 6597956 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA KIMBERLY DOE, Plaintiff, vs. BBVA USA, an Alabama Corporation; MAHMOUD ALAEDDIN, an individual; and DOES 1 TO 30, inclusive, Defendants. 4844-2997-8349.1 1 Case No. 20CV373869 Assigned For A11 Purposes T0 Judge Peter H. Kirwan, Dept. 19 DEFENDANT BBVA USA’S MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F MOTION To COMPEL PLAINTIFF’S FURTHER RESPONSE T0 DEFENDANT’S SPECIAL INTERROGATORIES, SET ONE; AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT 0F $3,665 PURSUANT T0 C.C.P §§ 2030.300(a)(3), 2030.300(d) Reservation N0.: Date: Time: Dept.: Action Filed: December 28, 2020 Trial Date: None Set DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGE I. INTRODUCTION ..................................................................................................................... 5 II. PROCEDURAL BACKGROUND ............................................................................................ 5 III. FACTUAL BACKGROUND .................................................................................................... 7 A. Plaintiff s Complaint alleges that she suffered emotional distress as a direct result 0f Defendant’s conduct ........................................................................................................... 7 B. Plaintiff has publicly posted about her alternate stressors Which could have caused her alleged emotional distress. ................................................................................................. 8 IV. MEET AND CONFER EFFORTS ............................................................................................ 9 V. LEGAL STANDARD .............................................................................................................. 11 VI. ARGUMENT ........................................................................................................................... 12 A. Plaintiff s obj ections that this interrogatory seeks information not reasonably calculated t0 lead t0 the discovery 0f admissible evidence and is overbroad are meritless. ............. 12 B. Plaintiff s privacy obj ection is meritless. ......................................................................... 14 C. Plaintiff s obj ection based on direct relevance is premature and misplaced. ................... 17 D. The Court should order Plaintiff to pay Defendant $3,665 in sanctions. ......................... 19 VII. CONCLUSION ........................................................................................................................ 20 4844-2997-8349.1 2 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Britt v. Superior Court (1978) 20 Cal.3d 844 ............................................................................................................... 16 Davis v. Superior Court (1992) 7 Ca1.App.4th 1008 [9 Ca1.Rptr.2d 331] ......................................................... 14, 15, 17 Emerson Electric C0. v. Superior Court (1997) 16 Ca1.4th 1101 ............................................................................................................ 13 Forthmann v. Boyer (2002) 97 Ca1.App.4th 977 ...................................................................................................... 13 Glenfed Development Corp. v. Superior Court (1997) 53 Ca1.App.4th 1113 .................................................................................................... 13 Hale v. Sup. Ct. (1994) 28 Ca1.App.4th 1421 .................................................................................................... 18 Hallendorfv. Superior Court (1978) 85 Cal.App.3d 553 [149 Ca1.Rptr. 564.] ..................................................................... 14 Heda v. Superior Court (1990) 225 Cal.App.3d 525 ..................................................................................................... 19 Hill v. National Collegiate Athletic Assn. (1994) 7 Ca1.4th 1 .............................................................................................................. 14, 15 John B. v. Superior Court (2006) 38 Ca1.4th 1177 [45 Cal.Rptr.3d 316,137 P.3d 153] ............................................. 18, 19 Kimberly Doe v. BBVA USA, et al. Santa Clara Superior, Case N0. 20CV373869 ........................................................................ 21 In re Lifichutz (1970)2Cal.3d415 ........................................................................................................... 17, 18 Lopez v. Watchtower Bible & Tract Society ofNew York, Inc. (2016) 246 Ca1.App.4th 566 .................................................................................................... 13 Nat'l Steel Prods. C0. v. Superior Court (1985) 164 Cal.App.3d 476 ..................................................................................................... 13 4844-2997-8349.1 3 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Slagle v. Superior Court (1989) 211 Cal.App.3d 1309 ................................................................................................... 16 Tenderloin Housing Clinic v. Sparks (1992) 8 Cal.App.4th 299 ........................................................................................................ 10 Vinson v. Superior Court (1987) 43 Cal.3d 833 [239 Cal.Rptr. 292] .................................................................. 14, 15, 16 Williams v. Superior Court (2017) 3 Cal.5th 531 ................................................................................................................ 12 Statutes Code CiV. Proc. § 2030.300(d) ...................................................................................................... 19 Code 0f Civil Procedure section 2017.010 .................................................................................... 12 Code of Civil Procedure section 2030.300 .................................................................................... 11 Discovery Act ................................................................................................................................ 12 Form Interrogatories-Employment Law ...................................................................................... 6, 7 Other Authorities California Constitution Article I, section 1 ................................................................................... 14 First Legal at https://firstlegal.com ............................................................................................... 21 Request for Judicial Notice, Exh. 1 ......................................................................................... 6, 7, 8 4844-2997-8349.1 4 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In this matter, Plaintiff Kimberly Doe (“Plaintiff’) has brought the following claims against her former employer BBVA USA (“Defendant”): sexual harassment, retaliation, wrongful termination, intentional infliction 0f emotional distress and battery. Specifically, Plaintiff contends her supervisor sexually harassed her, which led t0 her constructive discharge, and seeks emotional distress damages from BBVA as a result. Defendant propounded Special Interrogatories on February 2, 2021, one of which sought the contact information (i.e., name, address and phone number) 0f the health care providers she had seen in the past five years. Plaintiff provided only obj ections t0 this Interrogatory based on relevancy, overbreadth, privacy, and “direct relevance” grounds, refused to provide a substantive response and has steadfastly stonewalled Defendant in its efforts to discover this relevant and unprivileged information. Defendant has tried to avoid filing this motion by attempting to meet and confer with Plaintiff in order to resolve this discovery dispute. However, Plaintiff has continued t0 assert meritless obj ections, refused to grant a short extension t0 file this motion since he was on vacation (i.e., telling Defendant’s counsel “I’m on vacation, I can’t look at this until I get back [on June 7, 2021-t0day’s date and motion t0 compel deadline]”) and responded t0 Defendant’s request for an extension by serving a notice of unavailability threatening sanctions. Last Friday, June 4, 2021, after days of silence, Plaintiff” s counsel again asserted the same meritless obj ections and refused t0 provide this basic discoverable information. Because the obj ections asserted by Plaintiff are meritless, Defendant respectfully requests the Court order Plaintiff to provide Defendant With a substantive response and award Defendant $3,665 in monetary sanctions. II. PROCEDURAL BACKGROUND On February 2, 2021, Defendant served Special Interrogatories, Set One on Plaintiff. This set of interrogatories included Special Interrogatory No. 1, which read as follows: “IDENTIFY each and every HEALTH-CARE PROVIDER YOU have seen between January 1, 2016 and present.” This set 0f interrogatories also included the following definitions: “IDENTIFY” means provide the name, address and telephone number of the person; and “HEALTH-CARE 4844-2997-8349.1 5 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROVIDER” means any physicians, doctors, nurses, chiropractors, skilled nursing facilities, assisted living facilities, hospitals, and clinics. Cardenas Decl., 1Q, EXh. A. On February 2, 2021, Defendant also served Form Interrogatories-Employment Law, Set One on Plaintiff. This set of interrogatories included Form Interrogatories-Employment No. 212.3, Which asked: “D0 you still have any complaints 0f physical, mental, or emotional injuries that you attribute to the ADVERSE EMPLOYMENT ACTION? If so, for each complaint state: (a) a description of the injury; (b) Whether the complaint is subsiding, remaining the same, 0r becoming worse; and (c) the frequency and duration.” In addition, Form Interrogatories-Employment No. 210.2 requested the total amount of income Plaintiff claims to have 10st to date. Cardenas Decl., 1B, EXh. B. On or about April 2, 2021, Plaintiff sent Defendant her responses t0 Special Interrogatories, Set One, which included the following response t0 Special Interrogatory No. 1: “Obj ection. This interrogatory is not reasonably calculated to lead to the discovery of admissible evidence and invades plaintiffs right to privacy. This interrogatory seeks to discover plaintiffs medical history and/or treatment which is completely unrelated to the issues in this litigation in Violation 0f plaintiff‘s constitutionally protected right to privacy under Article I, section 1 0f the California Constitution. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [239 Ca1.Rptr. 292, 299]; and Davis v. Superior Court (1992) 7 Ca1.App.4th 1008, 1014-1016 [9 Cal.Rptr.2d 331, 335].) To require plaintiff to delineate his or her entire medical history for the past 5 years is not reasonably calculated t0 lead to the discovery of admissible evidence, and overbroad. (Hallendorfv. Superior Court (1978) 85 Cal.App.3d 553, 557 [149 Ca1.Rptr. 564, 566.]) The disclosure 0f medical history and medical records cannot be compelled even though they may, in some sense, be relevant to the substantive issues 0f litigation. The medical records must be directly relevant to the lawsuit. (In re Liflvchutz (1970) 2 Cal.3d 415,435 [85 Ca1.Rptr. 829, 842].). Cf. Hale v. Sup. Ct. (1994) 28 Cal.App.4th 1421; Cf. John B. v. Superior Court (2006) 38 Cal.4th 1177 [45 Ca1.Rptr.3d 316,137 P.3d 153]; Cf. Davis v. Superior Court (1992) 7 Ca1.App.4th 1008 [9 Cal.Rptr.2d 33 1]; Cf. Heda v. Superior Court (1990) 225 CA3d 525, 529-530, 275 CR 136.” Cardenas Dec1., 1T4, EXh. C. 4844-2997-8349.1 6 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about April 2, 2021, Plaintiff also sent Defendant her responses to Form Interrogatories-Employment Law, Set One, which included the following response t0 Form Interrogatory-Employment N0. 2 1 2.3 : “Yes. (a) Emotional distress. (b) It is subsiding, but going through this case is having it become worse again. (c) Ongoing.” In her response t0 Form Interrogatories-Emp10yment No. 210.2, Plaintiff stated that her lost income t0 date was $7,200, and thus the majority 0f the damages she seeks appears t0 be emotional distress damages. Cardenas Decl., 1E, EXh. D. On May 24, 2021, Plaintiff served amended responses to some special interrogatories, but did not include an amended response t0 Special Interrogatory N0. 1. Cardenas Decl., 1110. III. FACTUAL BACKGROUND A. Plaintiff’s Complaint alleges that she suffered emotional distress as a direct result 0f Defendant’s conduct. On November 20, 2020, Plaintiff filed her Complaint alleging the following causes 0f action against Defendant: sexual harassment, retaliation, wrongfillly termination, intentional infliction of emotional distress, battery, and breach of the covenant 0f good faith and fair dealing. Request for Judicial Notice, Exh. 1 (“Complaint”). She seeks various damages including emotional distress damages from Defendant. For example, as part of her third cause of action for wrongful termination in Violation 0f public policy Plaintiff alleged: “As a direct and proximate result of the Plaintiffs termination by the defendants and each 0f them, in Violation 0f public policy, Plaintiff has suffered and Will continue to suffer pain and suffering and extreme mental anguish and emotional distress.” Complaint, p3, 1n.5-11 (Emphasis added). Plaintiff further alleged as part of her fifth cause of action for intentional infliction of emotional distress: “As a direct and proximate result of the acts and omissions 0f the defendants and each of them, Plaintiff has suffered and Will continue t0 [sic] severe mental anguish and emotional distress. . . .” Complaint, p.13, 1n. 1 8-21, (Emphasis added). In addition to the claimed emotional distress, 4844-2997-8349.1 7 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has also alleged she suffered physical injuries as a result of Defendant’s conduct. For example, in her sixth cause of action for battery, Plaintiff alleges that she “has suffered psychological trauma, deep sadness, mental anguish, humiliation and physical and emotional distress and has been iniured in the mind and body.” Complaint, p. 14, 1n. 24-p.15, 1n. 1 , (Emphasis added). B. Plaintiff has publicly posted about her alternate stressors Which could have caused her alleged emotional distress. Contrary to the allegations in Plaintiff s complaint, it appears that Plaintiff has many alternate stressors that Defendant Will argue at trial caused Plaintiff’ s alleged emotional distress. Plaintiff posted on her personal blog, “Rock My Vegan Socks”: 2018 [prior to her employment with Defendant] has been the second most difficult year in my entire life. It brought on so many challenges back t0 back that I could barely keep my head above water, Ihonestlv felt like Iwas drowning a lot. Before the last post I made, my husband went through something very traumatic and it shook our world up. And then after I made that post. .. Iwas sexually assaulted. Icouldn’t sleep for two months and I couldn’t fathom blogging. Iwas abused sexually as a teen, so When this happened, it opened up some PTSD that I hadn’t realized I hadn’t quite processed and moved on from. On top of all 0f that, I finally made serious progress with recovering from mV disordered eating for the first time ever. I feel I am finally properly recovering from it and in such a healthier place. Which means. .. I don’t think it’s helpful for me t0 blog about food and exercise. Sadly, Ihave noticed it’s triggering ofme to be immersed in the food blogging community. Plaintiff also posted: Growing up, Ihad a lot of health issues. I had hormone imbalances galore, autoimmune issues, terrible asthma and allergies. By the time I was 15 Ihad been diagnosed With Hashimoto’s Thyroiditis (a form of hypothyroidism, an under- active thyroid), had alopecia areata to the point of losing much 0fmy hair and was trying to recover from particularly nasty case 0f mono. A11 0f the stress lead t0 have such bad acid reflux, I was told I would probably get an ulcer and had t0 take prescription meds to combat it. To gain control 0f so many thing I felt I could not control, I developed an unhealthy relationship With food and started restrictive eating. University wasn’t much better as I struggled With my health, Ibecame depressed and continued t0 hardly eat anything and When I did eat, it was only junk. My acid reflux got so bad it started interfering with sleeping and dailV activities as I was always in pain and felt sick. Instead 0f changing my diet, I just took stronger 4844-2997-8349.1 8 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 medication. As my allergies worsened, I started meds for that as well. After University I got a iob that I didn’t like much and the stress and health problems continued. In 2005, my health hit an all-time low as Ihad to have a complete thyroid removal due t0 thfloid cancer and promptly started taking hormone replacement therapy. This was not quite 2 months after having lost my father t0 cancer. The year after that is kind of a blur as Iworked through grief at my sudden loss. Irecentlv faced a major life change 0fmoving to a new country and the stress has lead [sic] me to some emotional eating and weight gain. Cardenas Decl., 1T6, Exh. E. IV. MEET AND CONFER EFFORTS On April 21, 2021, Defendant’s counsel sent a meet and confer letter t0 Plaintiff s counsel, Todd K. Davis, regarding Plaintiff’s response to Special Interrogatory No. 1, among other deficient responses. The letter set forth authority regarding Why Plaintiff’ s privacy-based obj ection was meritless and requested that Plaintiff provide a further response by April 30, 202 1. Cardenas Decl., 117, EXh. F. Defendant also proposed that any privacy concerns could be addressed with a stipulated protective order. Cardenas Decl., 117, Exh. F. On April 23, 2021, Mr. Davis responded Via email, stating in relevant part: As you and I discussed in our telephone conversation, my client is not making a claim for extreme emotional distress 0r a psychiatric injury. T0 the extent that is not clear in either the Complaint or the discovery responses, we are Willing t0 amend. The emotional distress claim in this action is just the typical “garden variety” emotional distress that any young woman would experience When she is being sexually pursued by her supervisor Who is twenty years older than she is and already has two wives. As such we have not put [Plaintiff s] mental condition at issue. . .. Cardenas Decl., 1T8, Exh. G. On May 17, 2021, Plaintiff agreed Via email t0 extend the deadline for Defendant t0 file a motion to compel further responses t0 Plaintiff s discovery responses, including Special Interrogatories, Set One, to and including June 7, 2021. Cardenas Decl., 1T9, EXh. G. On June 1, 2021, after Plaintiff served amended responses t0 some Special Interrogatories, but did not provide an amended response t0 Special Interrogatory N0. 1, Defendant’s counsel sent an email to Plaintiff s counsel to request a two-week extension for Defendant’s motion t0 compel 4844-2997-8349.1 9 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in order for the parties to meet and confer regarding Special Interrogatory No. 1. Declaration of Joseph Appel (“Appel Decl.”), 112, EXh. A. Mr. Davis replied Via email that same day and stated, “I’m 0n vacation, I can ’t [00k at this until I get back.” Appel Decl., 1Q, EXh. A. Approximately 30 minutes after Mr. Davis replied, Mr. Appel received a document Via email from Mr. Davis’s office styled as Notice 0f Unavailability ofCounsel indicating “that commencing June 1, 2021, through June 7, 2021} Todd K. Davis, counsel 0f record in the above- referenced case, will be unavailable for any purpose whatsoever, including but not limited to receiving notices of any kind, responding t0 ex parte applications, appearing in court, attending depositions, responding t0 discovery requests, responding t0 motions, or for any other purpose. Purposely scheduling 0r rescheduling a conflicting proceeding without good cause is sanctionable conduct. Tenderloin Housing Clinic v. Sparks (1992) 8 Ca1.App.4th 299.” Appel Decl., 113, EXh. B. On June 2, 2021, Mr. Appel emailed Mr. Davis to again request a two-week extension. Mr. Davis did not reply to this request. Appel Decl., 1T4, Exh. A. Two days later, 0n Friday June 4, 2021, well after Defendant began drafting this motion in light 0f Mr. DaVis’ failure t0 provide Defendant With an extension 0f its motion t0 compel deadline, Mr. Davis emailed Mr. Appel stating in relevant part: Special interrogatory 1 seeks information which is subject t0 Kimberly’s right t0 privacy, is protected by the doctor/patient privilege and is not reasonably calculated t0 lead t0 the discovery 0f admissible evidence. Aside from your office’s position that you are entitled t0 mental health information, Which has been discussed by telephone and email multiple times, this interrogatory seeks treatment information for “physicians, doctors, nurses, chiropractors, skilled nursing facilities, assisted living facilities, hospitals and clinics.” Kimberly unequivocally has not put her physical health at issue, she has not claimed a physical injury and you are not entitled t0 this information. Appel Decl., 115, Exh. A. Mr. Appel replied Via email later that same day, stating in relevant part: Special Interrogatory No. 1 seeks only the names of health care providers that Ms. Murphy has sought treatment with during the last five years. It does not ask for her medical records 0r physician-patient communications. The scope of 1 Note that June 7, 2021 is the deadline for Defendant t0 file this Motion pursuant t0 Plaintiff providing Defendant with an initial extension 0f the motion t0 compel deadline but failure t0 provide Defendant With another two-week extension t0 further meet and confer. 4844-2997-8349.1 10 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery is extremely broad-i.e., any unprivileged, relevant matter that is admissible or reasonably calculated to lead t0 the discovery 0f admissible evidence. Since Ms. Murphy claims that BBVA caused her emotional distress- regardless if you want to categorize it is as “garden variety” 0r not-BBVA is entitled to this information as it is likely t0 lead t0 admissible evidence (such as her medical records and/or witnesses’ names and contact information) establishing that Ms. Murphy had other potential stressors that caused her alleged emotional distress and that it was not BBVA that did so. Ms. Murphy has publicly published about her various past traumas (sexual assault prior to working for BBVA, her divorce, chronic illnesses, including an eating disorder) all over the internet. Thus, any contention that this information is privacy-protected is a stretch. Moreover, Ms. Murphy has n0 reasonable expectation 0f privacy regarding her health care provider’s identities. This information is frequently given to health and life insurance companies and contains no private information-it is simply their names and contact information. Any expectation 0f privacy would not be reasonable. And compared to BBVA’s compelling interest in this information, BBVA believes the balance Will weigh in its favor. Moreover, at trial BBVA Will rely 0n these other stressors t0 rebut her claim that BBVA caused her emotional distress. Moreover, Plaintiff s battery cause of action claims she has suffered physical distress and has been injured in the mind and body, thus contrary to her contentions, she has put both her mental and physical condition at issue here. Additionally, the physician-patient privilege does not apply either as it protects only confidential communications. Accordingly, in light 0f your failure t0 provide us With an amended response 0r even an extension t0 further meet and confer on this issue for that matter, we will be filing a motion to compel further response and seek sanctions against you 0n Monday, June 7, 2021. To the extent you want t0 raise your arguments in response t0 our subpoenas 0f these records once we obtain this information, you may do so at that time. But your arguments below are misplaced and not appropriate given the information sought in Special Interrogatory N0. 1. Appel Decl., 116, EXh. A. Mr. Davis responded Via email later that afternoon and wrote in relevant part: The names 0f the Plaintiff’ s medical providers are subj ect to her right t0 privacy and are not discoverable unless she puts her physical condition at issue, which she has not. We have alleged that Kimberly’s BBVA supervisor rubbed her shoulders, we did not claim that she suffered a physical injury from it or that she required medical attention for the shoulder rub. If the complaint is unclear in this regard, we are Willing to amend the complaint t0 clarify that there is no claim 0f physical injury or resulting medical treatment. Appel Decl., 117, Exh. A. LEGAL STANDARD Code 0f Civil Procedure section 2030.300 allows a propounding party t0 move “for an order compelling a further response if the propounding party deems that any of the following apply: An obj ection t0 an interrogatory is Without merit or too general.” “While the party 4844-2997-8349.1 1 1 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 propounding interrogatories may have the burden of filing a motion t0 compel if it finds the answers it receives unsatisfactory, the burden ofjustifying any obj ection and failure to respond remains at all times With the party resisting an interrogatory.” Williams v. Superior Court (2017) 3 Cal.5th 531, 541. VI. ARGUMENT Plaintiff s obj ections based on relevance, overbreadth, privacy and “direct relevance” grounds are meritless. This interrogatory-which solely seeks Plaintiff’s health care providers’ names and contact information for the past five years-is narrowly tailored t0 obtain information reasonably calculated to the discovery of admissible evidence and this basic information is not privacy-protected. We address each of Plaintiff’s obj ections below. A. Plaintiff’s obiections that this interrogatorv seeks information not reasonablv calculated t0 lead t0 the discovery 0f admissible evidence and is overbroad are meritless. Plaintiff obj ects to this Interrogatory 0n the ground that it is not reasonably calculated to lead t0 the discovery of admissible evidence and overbroad. Code 0f Civil Procedure section 2017.010 provides “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subj ect matter involved in the pending action or t0 the determination 0f any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated t0 lead to the discovery of admissible evidence. Discovery may relate t0 the claim 0r defense 0f the party seeking discovery or of any other party t0 the action. Discovery may be obtained of the identity and location 0f persons having knowledge 0f any discoverable matter, as well as 0f the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, 0r land or other property.” In other words, the scope 0f discovery is incredibly broad. “Discovery of all relevant material during the time 0f preparation is the aim of the Discovery Act. Relevancy is a broader concept than relevancy t0 the issues, the standard is relevancy to the subj ect matter, Which is determined by potential, not actual, issues in the case. Further, discovery of unprivileged information should generally be permitted if it appears 4844-2997-8349.1 12 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonably calculated t0 lead to the discovery of admissible evidence. In accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should be resolved in favor 0f permitting discovery.” Nat'l Steel Prods. C0. v. Superior Court (1985) 164 Cal.App.3d 476, 492-493 (internal citations omitted). Moreover, “[t]he statutory phrase subject matter is broader than the issues and is not limited t0 admissible evidence. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead t0 admissible evidence. These rules are applied liberally in favor 0f discovery and (contrary t0 popular belief), fishing expeditions are permissible in some cases.” Lopez v. Watchtower Bible & Tract Society ofNew York, Inc. (2016) 246 Cal.App.4th 566, 591 (internal citations omitted). One key legislative purpose of the discovery statutes is “to educate the parties concerning their claims and defenses so as to encourage settlements and t0 expedite and facilitate trial.” Emerson Electric C0. v. Superior Court (1997) 16 Cal.4th 1101, 1107. The discovery procedures are also “designed t0 minimize the opportunities for fabrication and forgetfulness.” Glenfed Development Corp. v. Superior Court (1997) 53 Ca1.App.4th 1113, 1119. Consistent with these purposes, our Supreme Court has often stated that discovery statutes are t0 be construed broadly in favor 0f disclosure, so as t0 uphold the right t0 discovery whenever possible. Emerson, supra, at 1107-1 108. “Matters sought are properly discoverable if they Will aid in a party's preparation for trial.” Forthmann v. Boyer (2002) 97 Ca1.App.4th 977, 987. The information sought by Special Interrogatory No. 1 (i.e., the identity and contact information 0f Plaintiff s health care providers in the past five years) is relevant to Plaintiff s claims that Defendant caused her emotional distress as a result 0f allegedly being sexually harassed at work. Therefore, the identity of Plaintiff’ s medical providers over the last five years is relevant t0 her emotional distress claim and damages in many ways. First, the information will likely lead t0 Defendant subpoenaing these medical records which will likely reveal that Plaintiff had a pre-existing condition, such as depression 0r anxiety, Which will be relevant to Whether 0r not Defendant indeed caused Plaintiff s emotional distress. If Plaintiffhad this condition before her employment with Defendant, then Defendant and Defendant’s expert would be entitled to 4844-2997-8349.1 13 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 know this information in order to rebut her claim 0f causation. Second, since the Interrogatory seeks the identity of health care providers through and after her employment, it will likely lead to Defendant subpoenaing records which might reveal information regarding the extent and severity of Plaintiff” s emotional distress, the self-reported cause of Plaintiff’s emotional distress and/or any diagnoses and other alternate stressors (such as her divorce, eating disorder, pre-BBVA employment sexual assault, etc.). A11 0f these issues are highly relevant to Plaintiff s claim of damages against Defendant. Plaintiff relies 0n Hallendorfi in support of her contention that this Interrogatory seeks information not reasonably calculated t0 lead t0 the discovery 0f admission evidence and is overbroad. However, in Hallendorf, the defendant “propounded interrogatories to petitioner requiring him t0 provide information about medical problems. . .during his entire lifetime.” Id. at 555. Here, Defendant has not requested a lifetime of medical records, but rather has narrowly tailored the request t0 the past five years and specifically limited it t0 contact information for treating health care providers. Thus, because the information sought is reasonably calculated t0 lead to the discovery 0f admissible evidence, Defendant is entitled to this information. B. Plaintiff’s privacy objection is meritless. Plaintiff objected t0 this Interrogatory 0n the grounds that it “seeks t0 discover plaintiff‘s medical history and/or treatment Which is completely unrelated t0 the issues in this litigation in Violation 0f plaintiff‘s constitutionally protected right t0 privacy under Article I, section 1 0f the California Constitution. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 []; and Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014-1016 [].)” First, Plaintiff has not set forth any support for her contention that the names of her medical providers are protected by the right of privacy. In Hill v. National Collegiate Athletic Assn. (1994) 7 Ca1.4th 1, the California Supreme Court held that “a plaintiff alleging an invasion 0f privacy in Violation of the state constitutional right to privacy must establish each 0f the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion 0f privacy.” A defendant may prevail “in a state constitutional privacy case by negating any of the three elements 4844-2997-8349.1 14 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively fithhers one or more countervailing interests. Plaintiff, in turn, may rebut a defendant’s assertion 0f countervailing interests by showing there are feasible and effective alternatives t0 defendant's conduct which have a lesser impact on privacy interests.” Hill, supra, at 39-40. 9 First, this Interrogatory does not seek “plaintiff" s medical history and/or treatment,’ rather it seeks the names and contact information of her health care providers over the last five years. Plaintiff has not provided any authority that she has a legally protected privacy interest or a reasonable expectation 0f privacy in the names and contact information of her health care providers over the last five years. Since individuals are regularly required t0 provide this information t0 various insurers and other medical providers in order to obtain these records, Plaintiff cannot establish a reasonable expectation 0f privacy in this information. Additionally, requesting the names of Plaintiff” s medical providers does not constitute a serious invasion of privacy-it is simply just their names and contact information-nothing more. Second, assuming arguendo that there is a privacy interest in the names and contact information of her medical providers (and there is not), Defendant has a countervailing interest in obtaining this information so it may subpoena Plaintiff’ s medical records in order t0 determine alternate stressors or pre-existing conditions that may have caused or contributed to Plaintiff s alleged emotional distress-which she contends Defendant alone caused her. Thus, in order t0 rebut Plaintiff’ s claims and emotional distress damages and prepare for trial, Defendant would need this information. This is crucial since the maioritV of Plaintiff s damages are emotional distress damages, as her claimed lost wages are minimal since she has claimed oan $7,200 in lost income to date. Cardenas Decl., 15, EXh. D. Accordingly, Plaintiff will be unable t0 establish that she has a privacy interest in the names of her health care providers, or that Defendant’s countervailing interest is not compelling enough t0 outweigh her privacy interests. Moreover, Plaintiff’ s reliance 0n Vinson and Davis misplaced. First, Vinson actually supports Defendant’s argument that this information is discoverable because Plaintiff has alleged mental and emotional damages, and thus has put her mental condition at issue. In Vinson, the issue 4844-2997-8349.1 15 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was whether the plaintiff had put her mental condition at issue as a basis for the defendant t0 seek a mental examination. The Vinson Court allowed the mental examination t0 proceed because it found that the plaintiff, by alleging various mental and emotional ailments, had put her mental condition in controversy: [PHaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result the existence and extent 0f her mental iniuries is indubitablv in dispute. In addition, bV asserting a causal link between her mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused bV a preexisting mental condition, thereby raising the question 0f alternative sources for the distress. We thus conclude that her mental state is in controversy. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840. Here, like in Vinson, Plaintiff alleges Defendant caused her “emotional and physical distress,” as a result 0f events that allegedly occurred during her employment and separation of employment with Defendant. Defendant disputes that it caused her emotional distress and contends that other alternate stressors caused or contributed to her alleged emotional distress. Plaintiff also alleges separate causes 0f action for intentional infliction 0f emotional distress. Thus, Plaintiff has plainly placed her mental condition in controversy. Plaintiff s contention that she has not put her mental status “at issue” because she is only claiming “garden variety” emotional distress and will not retain an expert at trial regarding her emotional distress damages misses the point. Even if Plaintiff were not to retain an expert, Defendant would still be able to rebut her contentions about the cause 0f her emotional distress with its own retained witness. To that end, Defendant is entitled to conduct discovery t0 uncover evidence regarding causation. Britt v. Superior Court (1978) 20 Cal.3d 844, 864, fn. 9 (“[I]nsofar as a number of injuries 0r illnesses, some related and some unrelated t0 the airport operations, have contributed to a medical condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries 0r illnesses”); Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 13 14 (medical records 0f a plaintiff are discoverable “where the plaintiffs conduct is shown t0 be relevant to the issue of proximate causation”). Based on Plaintiff s blog postings, Defendant is aware 0f multiple medical conditions that may have contributed t0 her 4844-2997-8349.1 16 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged injuries. The information sought by Special Interrogatory No. 1 (i.e., name, address, phone number 0f Plaintiff’ s medical providers in the last five years) is reasonably calculated to lead t0 the discovery 0f such evidence-i.e., Witnesses and/or documents with information regarding alternate causes 0f Plaintiff’s alleged injuries. Second, Davis, is distinguishable. In Davis, Plaintiff filed a “garden-variety motor vehicle personal injury action alleging general damages, loss 0f earning capacity, wage loss and other compensatory damages.” The Defendant in the Davis case served a subpoena seeking plaintiff s medical records, and plaintiff filed a motion t0 quash. The Davis Court granted the motion t0 quash, finding that although there is an implicit partial waiver 0f a plaintiff s right t0 privacy When a lawsuit is filed, an “implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant t0 the plaintiffs claim and essential t0 the fair resolution of the lawsuit.” Here, unlike Davis, Defendant has not requested medical records, but rather contact information of Plaintiff’s treating health care providers. Second, Davis is not an employment case, it was a motor vehicle accident/personal injury case. Third, the Plaintiff in Davis, did not allege a separate cause 0f action for intentional infliction of emotional distress, like Plaintiff did here. C. Plaintiff’s obiection based 0n direct relevance is premature and misplaced. Plaintiff obj ects 0n the basis that the “medical records” sought must be directly relevant t0 the lawsuit and cites five decisions in support 0f this proposition? However, Defendant does not seek medical records-it seeks solely the names and contact information of her medical providers in the last five years-and the cited cases are inapplicable as discussed in turn below. Notably, Plaintiff has misstated the scope of discovery. There is no requirement that information sought in discovery be “directly relevant,” rather as set forth above, the scope of discovery for relevant, unprivileged, non-private information includes that which is reasonably calculated t0 lead t0 the discovery 0f admissible evidence. Regarding the cases cited by Plaintiff in this objection, first, the Supreme Court’s decision in In re szs‘chutz (1970) 2 Cal.3d 415 involved a psychotherapist Who relied 0n the 2 Plaintiff cites the Davis case, Which has already been discussed above. 4844-2997-8349.1 17 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 psychotherapist-patient privilege (which protects confidential communications) to object to being compelled t0 answer questions at deposition and producing his medical records relating t0 plaintiff s treatment. The Court analyzed Whether the litigant-patient exception to the psychotherapist-patient privilege “unconstitutionally infringed the constitutional rights of privacy 0f either psychotherapists 0r psychotherapeutic patients.” Id. at 423. The Supreme Court concluded that it did not. Here, Plaintiff has not objected based 0n the psychotherapist-patient privilege and thus has waived that obj ection. Moreover, this Interrogatory does not seek confidential communications between Plaintiff and her medical providers. Second, the Court in Hale v. Superior Court (1994) 28 Cal.App.4th 1421, 1423 examined the contours 0f the physician-patient privilege and who holds the privilege as between a deceased plaintiff’ s estate and a defendant Who retained two 0f plaintiff’ s treating physicians as experts. The Court found the privilege was not negated by the brief nature of plaintiff s treatment or the plaintiff” s inability to speak t0 her doctors. Hale, supra, at 1424. The Court further found that the privilege protects “confidential communications,” a statutory term of art defined to include “information obtained by an examination 0f the patient.” Id. Lastly, the court found that the privilege was held by the estate and continued to protect confidential communications even after plaintiff’ s death. Id. This case does not support the “directly relevant” proposition for Which it is cited and is inapplicable again because the requested information does not seek confidential communications between Plaintiff and her medical providers. Third, Plaintiff cites John B. v. Superior Court (2006) 38 Cal.4th 1177, Where defendant refused t0 answer interrogatories3 concerning his HIV status 0r his sexual history based 0n his 3 The interrogatories included: (1) the name, address, and telephone number 0f every man With Whom he has had sexual relations in the last 10 years; (2) the date 0f his first sexual encounter with a man; (3) the date 0f his last sexual encounter with a man; (4) the name, address, and telephone number 0f every man With Whom he has had unprotected sex in the last 10 years; (5) the date on Which he first became aware he was HIV positive; (6) the date on which he first became aware he had AIDS; (7) the date on which he first told [plaintiff] that he had engaged in unprotected sex With men; (8) the name, address, and telephone number of every HIV-positive man with Whom he has had unprotected sex; (9) the name, address, and telephone number 0f every man who has AIDS and with whom he has had unprotected sex; (10) the number of sexual encounters With men he had in the five years prior to his relationship with [plaintiff]; (1 1) the date Sfootnote continued) 844-2997-8349.1 1 8 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constitutional right to privacy. Id. at 1199. After balancing the competing state and individual interests, the Supreme Court found that plaintiff was entitled t0 the requested discovery. As part of its analysis, the Supreme Court noted that by “putting his own medical condition at issue, John has ‘substantially lowered’ his expectation 0f privacy even further.” John B. v. Superior Court (2006) 38 Ca1.4th 1177, 1199. This case undercuts Plaintiff’ s privacy right, if there is any, as she has put her mental health condition at issue. Fourth, Plaintiff cites Heda v. Superior Court (1990) 225 Cal.App.3d 525, which discussed disclosure of medical records subpoenaed in support 0f motion for trial preference. After weighing defendant’s privacy interests against plaintiff s interest in obtaining trial preference, the Court found that plaintiff could obtain the sought-after information through deposition and vacated the trial court’s order compelling production of the medical records. The Court never mentioned that the requested information had t0 be directly relevant. None of these authorities are persuasive. D. The Court should order Plaintiff t0 Dav Defendant $3,665 in sanctions. “The court shall impose a monetary sanction against any party, person, 0r attorney Who unsuccessfully makes 0r opposes a motion t0 compel a further response to interrogatories, unless it finds that the one subj ect t0 the sanction acted with substantial justification 0r that other circumstances make the imposition 0f the sanction unjust.” Code CiV. Proc. § 2030.300(d). Defendant Wished to avoid motion practice, but was forced t0 seek court intervention only after Plaintiff refused to grant the short two-week extension t0 further meet and confer while he was out 0n vacation. Consequently, Defendant respectfully requests the court impose a monetary sanction 0f $3,665 in its favor against Plaintiff. This calculation is based 0n two hours at Ms. Cardenas’s rate of $400/hour and two hours at Mr. Appel’s rate 0f $295/hour spent drafting this motion and supporting documents, two hours at Ms. Cardenas’s rate of $400/hour and four hours at Mr. Appel’s rate 0f $295/h0ur that is anticipated Will spent drafting a reply t0 Plaintiff s 0f his last sexual encounter with a man prior t0 the date 0f his engagement to [plaintiff]; (12) the date of every sexual encounter he had with a man between his engagement to [plaintiff] and the wedding; and (13) the number of sexual encounters he has had with men since he first met [plaintiff]. John B., supra, at 1184. 4844-2997-8349.1 19 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opposition, and one hour at Mr. Appel’s rate of $295/hour that is anticipated Will spend attending the hearing on this motion at an hourly rate 0f $295. Cardenas Decl., 111 1; Appel Decl. 118. VII. CONCLUSION Based on the foregoing, Defendant respectfully requests the court issue an order compelling Plaintiff t0 provide Defendant With a further response t0 Special Interrogatory N0. 1. Additionally, Defendant respectfully requests the court impose $3,665 in monetary sanctions in favor of Defendant and against Plaintiff and her counsel. DATED: June 7, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP By; am.W JOSEPH R. LORDAN ALLISON L. CARDENAS JOSEPH L.J. APPEL Attorneys for Defendant BBVA USA 4844499183491 20 DEFENDANT BBVA USA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE AND SANCTIONS LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA STATE COURT PROOF OF SERVICE Kimberly Doe v. BBVA USA, et al. Santa Clara Superior, Case N0. 20CV373869 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, Iwas over 18 years of age and not a party t0 this action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872. On June 7, 2021, I served true copies of the following document: DEFENDANT BBVA USA’S MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F MOTION T0 COMPEL PLAINTIFF’S FURTHER RESPONSE To DEFENDANT’S SPECIAL INTERROGATORIES, SET ONE; AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT 0F $3,665 PURSUANT T0 C.C.P §§ 2030.300(a)(3), 2030.300(d) I served the document on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): SEE ATTACHED SERVICE LIST The document was served by the following means: (BY ELECTRONIC SERVICE VIA FIRST LEGAL) Based 0n a court order, I caused the above-entitled document t0 be served through First Legal at https://firstlegal.com addressed to all parties appearing 0n the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy of the First Legal Filing Receipt Page/Confirmation Will be filed, deposited, or maintained with the original document in this office. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed 0n June 7, 2021, at San Leandro, California. ”Wm Betty Jeung 4844-2997-8349.1 2 1 PROOF OF SERVICE LEWIS BRISBOIS BISGAARD & Slwm-I LLP ATTORNEYS AT LAW .b QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Kimberly Doe V. BBVA USA, et a1. Santa Clara Superior, Case N0. 20CV373869 TODD K. DAVIS Attorneysfor Plaintififi Kimberly Doe Farling, Hecht & Davis, LLP 96 North Third Street, Suite 660 Telephone: 408.295.6100 San Jose, CA 951 12 Facsimile: 408.299.0396 Email: todd@fl1dllp.com todd@farlin2hechtanddavis.com David M. Marchiano Attorneysfor Mahmoud Alaeddin Brown Gee & Wenger 200 Pringle Avenue, Suite 400 Telephone: 925-943-5000 Walnut Creek, CA 94596 Email: dmarchiano@bgwcounsel.com tDico@b2wcounsel.com 4844-2997-8349.1 22 PROOF OF SERVICE